"New" Administration Procedures On The State Secrets Privilege Receives Initial Mixed Reception

On September 23, 2009, United States Attorney General Eric Holder announced "new Department of Justice policies and administrative procedures that will provide greater accountability and reliability in the invocation of the state secrets privilege in litigation." Reaction to the new procedures was mixed and the question remains whether the new procedures will divert Congressional efforts to pass reform legislation governing the use of the state secrets privilege. For instance, Senator Russ Feingold (D-Wi) opined that the new policy “amounts to an approach of ‘just trust us’” and there may still be a need for Congress to facilitate “[i]ndependent court review of the government’s use of the state secrets privilege.”

In a post on June 12, 2009, we noted that the Administration declined to appear at a House Judiciary Subcommittee hearing on a proposed State Secrets Protection Act (H.R. 984). This absence was met with criticisms, such as that of House Judiciary Committee Chairman John Conyers (D-Mi). Chairman Conyers commented at the time that it was “unacceptable that the Department [of Justice] declined to come to this non-secret hearing [on H.R. 984 - State Secrets Protection Act of 2009]. They could not provide a witness, why? There's a review pending, and until it is solved, they don't want to come before this co-equal branch of government[?] They could have sent someone here to say we can't talk with you guys." The recent announcement of the new Department of Justice procedure received mixed reviews. It is unclear whether the procedures will calm arguments that Congress action is needed.

While congressional hearings in both the House and Senate were conducted in the spring, neither S. 417 or H.R. 984, which would establish a new process for the review of claims of state secrets privilege, has moved out of committee.

According to a Department of Justice, the new procedures involve:

Facilitation of Court Review – The policy ensures that before approving invocation of the state secrets privilege in court, the Department must be satisfied that there is strong evidentiary support for it. In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review.
Significant Harm Standard – The policy adopts a more rigorous standard to govern when the Department will defend assertions of the state secrets privilege in new cases. Under the new policy, the Department will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security.
Narrow Tailoring of Privilege Assertions – Under this policy, the Department will narrowly tailor the use of the states secrets privilege whenever possible to allow cases to move forward in the event that the sensitive information at issue is not critical to the case. As part of this policy, the Department also commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials.
State Secrets Review Committee – A State Secrets Review Committee will be formed consisting of senior Department officials designated by the Attorney General who will evaluate any recommendation by the Assistant Attorney General of the relevant Division to invoke the privilege. The Committee would make its recommendation to the Associate Attorney General, who would review and refer to the Deputy Attorney General for a final recommendation to the Attorney General or his designee.
Approval by the Attorney General – The policy requires the approval of the Attorney General prior to the invocation of the states secret privilege, except when the Attorney General is recused or unavailable. Previously, the invocation of the state secrets privilege could be approved by the appropriate Assistant Attorney General
Referral to Inspectors General – The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward.

Whether these steps will head off an effort for reform of the privilege by Congress is uncertain. Initial comments by the chairs of committees with jurisdiction in this area supported the changed policies, yet noted the need for legislation:

Senate Judiciary Committee Chair Patrick Leahy (D-Vt) generally supported the new procedures because they were “moving in the right direction to better control assertions” of the privilege and brought “a higher degree of transparency and accountability to a process previously shrouded in darkness.” Yet he noted the gap between S.417 and the recently announced procedures, which “especially concerned” the Senator. Specifically he thought there may still be a need for congressional action that would “ensur[e] that the government make a substantial evidentiary showing to a federal judge in asserting the privilege, and I hope the administration and the Department of Justice will continue to work with Congress to establish this requirement.”
House Judiciary Chair Jerrold Nadler (D-NY) of the Subcommittee on the Constitution, Civil Rights and Civil Liberties was reported on the New York Times blog “The Caucus” as applauding “Attorney General Eric Holder and the Obama administration for their meaningful reforms to the internal Department of Justice policing of the state secrets privilege. These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege.” However, the Representative also indicated that there was “still [a] need [for] legislation to guide the courts” in applying the privilege because the judiciary does “not take a consistent approach to claims of state secrets. And we must ensure that all of the necessary reforms are codified into law in order to prevent any future administration from abusing the state secrets privilege. My legislation, H.R. 984, the State Secret Protection Act, will achieve this. I look forward to working with the Obama administration to see these critical reforms through.”

Reaction by interest groups was equally quick and tentative:

ACLU Legislative Office Director Michael Macleod-Ball did not consider the new policies as putting an end to his organization’s call for legislation: “Legislative action is crucial to make certain that not only this administration, but future administrations, are bound by the rule of law when invoking state secrets. Bills currently pending in both the House and Senate would mandate court review of state secrets claims, adding a necessary check on executive claims of national security. The state secrets privilege allowed the Bush administration to successfully draw a curtain around many of its nefarious national security policies and up until today the Obama administration has chosen to allow that curtain to remain. Congress must play a role in this reform to ensure an outside check on this broad executive power.”

The Constitution Project, which bills itself as a “politically independent think tank established in 1997 to promote and defend constitutional safeguards,” also welcomed “today's announcement by the Department of Justice as an important first step in the right direction, defining and limiting the ability of the executive branch to assert the privilege. However, the Constitution Project calls on the administration and Congress to support legislation to protect and clarify the role of the courts in determining whether the state secrets privilege properly applies in given cases.”

OMB Watch, which describes itself as “a nonprofit government watchdog organization dedicated to promoting government accountability, was also positive in its assessment of the new policies. Its executive director Gary D. Bass saw the Holder Memo as "[u]nlike past administrations, where the state secrets privilege seemed to be invoked on an almost ad hoc basis, the Obama administration is signaling that it will only exercise the privilege in situations where significant harm to national security is likely and will be guided by a specific, step-by-step process to ensure there is not abuse of the privilege." Yet he too described a need for “efforts in Congress to require more definite judicial review of the privilege, noting that the administration's policy creates some uncertainty over the role of the courts moving forward.”

The new policy takes effect October 1, 2009. While it seems that the policy promises to usher in a more exacting review of the government’s assertion of the state secrets privilege, it does not seem that the policy will calm the concerns, as expressed by Senator Russ Feingold (D-WI), that a new policy alone cannot resolve a need for congressional action to facilitate an “[i]ndependent court review of the government’s use of the state secrets privilege.”

Share this post with colleagues on: